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Planning in a policy vacuum

On 27 May the new Secretary for Communities and Local Government, Eric Pickles, wrote to Chief Planning Officers to confirm the Government’s intention to remove the requirement for local planning authorities to be bound by regional housing targets. Significantly, he also stated that this intention should be treated as a material consideration in all planning decisions with immediate effect.

So where does this leave all those Councils without an adopted LDF Core Strategy? Some may be able to fall back on saved Structure Plan policies – though there would need to be sound reasoning behind decisions made on this basis if they are subject to appeals? Others may have an adopted Local Plan. A smaller number of authorities may have a non-statutory Local Plan that was not progressed to adoption with the advent of the 2004 Act, but has been adopted by the authority for the purposes of development control.

However, under all these scenarios the planning period is likely to be short-lived (up to 2011 in most cases) and/or the evidence base underpinning the policies will be long out of date. It is unlikely that Royal Asset for a new Decentralisation and Localism Bill would be achieved before summer 2011. Local planning authorities with no strong objections to their RSS targets might consider it pragmatic to stick with these in the absence of anything else, rather than incur delays while new ones are generated via a new local planning process on grounds this will take too long and create a policy vacuum.

All in all, without the overarching RSS housing numbers and policies, many authorities are likely to be very vulnerable to hostile planning applications, for developments in locations or of a scale that would have been outside the extant RSS or emerging Core Strategy.

This vulnerability applies equally to local authorities with the objectives of resisting development and those seeking growth. In both cases the absence of a regional policy framework will have significant implications for the functioning of a local planning system that was predicated on an RSS forming an essential part of the development plan for an area. In the short term – prior to any new legislation to reform the development plan system – we will have a fragmented or partial system.

One of the implications of any delay may be an increase in the volume of planning appeals; as developers sense a window of opportunity before a new or amended local plans system and/or revised appeals process, have the chance to be introduced and subsequently bedded down.

Authorities unable to refuse or delay applications on the grounds of housing numbers, may understandably choose non-determination as a way of buying time until clearer guidance emerging from Whitehall. If refusals are issued anyway in light of policy yet to emerge with statutory status, they run the risk of developers claiming that prematurity no longer applies when there is no trajectory defined towards a new plan making deadline.

Any such move towards planning by appeal will be resource intensive, time consuming and potentially very expensive. In the short term it may require a significant reallocation within local authority planning departments, as politicians become understandably reluctant to invest in planning policy with so much uncertainty about the shape of the development plan system. But that would be a mistake.

Any authority fighting an appeal will need sound evidence; particularly in relation to the impact of additional development on local infrastructure. Authorities, particularly those on the back foot, in terms of state of progress with their LDF, will want to ensure that if all else fails they have a robust evidence base to underpin their case for developer contributions, towards essential infrastructure required to mitigate the impact of unplanned development.

Some authorities may be stalling on this work due to the uncertain future of CIL, and what may replace it. That too would be a mistake. Whatever system of developer contributions is eventually adopted by the Coalition Government, it will always need to be based on sound infrastructure planning or run the risk of successful challenge.

Over the medium term, the introduction of new planning legislation, including the presumption in favour of sustainable development, must ensure that authorities have all the tools they need to manage development in their areas. The current LDF system is predicated on the strategic framework provided by the regional policy tier in order to effectively fulfil this role. Development Plans will therefore need to change – and local authorities will need to work with Government to ensure they have a system which is workable and robust; and learn the lessons of the past 5 years. We would argue that these include:

Sound infrastructure planning is essential to the delivery of sustainable development

Professional management of the consultation process will be increasingly important if it is not to be a reason for delay and prevarication

Policy making should be informed by a focused evidence base which addresses locally specific issues – not a checklist

Working with developers during the plan making process to agreed shared objectives and minimise risk of expensive and time consuming inquiries

Avoiding a return to a confrontational Local Plan inquiry based system.